in the Interest of B.B. and B.B., Children ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-403-CV
IN THE INTEREST OF B.B.
AND B.B., CHILDREN
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Mother appeals the order terminating her parental rights to Beth
and Becca.2 In four issues,3 Mother argues that the evidence is legally and
factually insufficient to support the trial court’s findings under Texas Family
1
… See Tex. R. App. P. 47.4.
2
… Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we use
aliases for the names of the children.
3
… Although Mother lists six issues under her “Issues Presented” section,
only four of those issues are briefed.
Code section 161.001(1)(D) and (E), section 161.001(2), and section 161.003.
We will affirm.
II. F ACTUAL B ACKGROUND
A. Mother’s Background
Mother grew up in a foster home in New Jersey and completed school
through the eleventh grade. In her teen years, mother was diagnosed with
bipolar disorder and saw a counselor, but she could not recall exactly when she
began taking medication for the disorder.
Mother now has five children, three of whom were not living with her at
the time of these proceedings: a grown son, who was raised by his father’s
cousin; a grown daughter, whose upbringing Mother refused to discuss because
the daughter was “a rape child”; and a twelve-year-old son, whose
whereabouts and paternity were unknown to Mother. Mother testified that she
talks to her grown children every day, but she was evasive about where they
live. 4 None of these children are involved in the current proceeding.
The two children at issue are Mother’s two youngest children, Beth—who
was born January 27, 1994—and Becca, who was born April 5, 1995. B.F. is
4
… Lazane Wall, who saw Beth and Becca for counseling, said that she
was concerned about how secretive Mother was when asked questions at trial
about her older children. Wall said that Mother did not seem like someone who
wanted her children back.
2
the father of both girls, but he had not seen them since Beth was a year old and
Becca was four months old. Mother was never legally married to B.F.
At the time of trial, Mother was married to H.G. but had filed a petition
for divorce from him. Mother testified that she was not currently in a
relationship.
B. Referrals in New Jersey
1. According to CPS’s Records
Melinda Hawkins, a CPS investigator, found out through her conversation
with the girls that there had been prior CPS cases against Mother in New Jersey
involving both the grown children and Beth and Becca. The record that
Hawkins reviewed revealed that there had been multiple CPS cases in New
Jersey and that they all involved domestic violence, drug use, or both.
In 1988, Mother dropped off her then two-month-old daughter at an
agency office in New Jersey, but no other information was available.
In 1990, New Jersey CPS received a referral involving Mother’s son, who
was six months old at the time. The father (who is not the same father of Beth
and Becca) pushed Mother, and the baby hit his head on a wall. Mother went
to a women’s shelter after that incident.
In 1991, New Jersey CPS received a referral that Mother was not in a
stable condition to take care of the children and that she was in need of mental
3
health services. The file mentioned that this referral occurred after “an
accident” but did not contain information on the type of accident.
In April 2001, New Jersey CPS received a referral that Mother was living
at the Rescue Mission, that she had been out all day and had failed to return,
and that the children were at the shelter.
In September 2001, New Jersey CPS received a referral that Mother had
contacted Rescue Mission because she was locked out of her house and could
not find Beth and Becca. The referral stated that Mother had been missing for
a few days prior to that and that the girls were living with a family friend.
In May 2006, New Jersey CPS received a referral that Beth had lost her
keys and was fearful that she was going to get a beating when she returned
home. The concerns of domestic violence were not substantiated at that time.
In November 2006, New Jersey CPS received a referral that the girls had
run away due to domestic violence and that they had been staying with a
family friend for a month. During the month that the girls were gone, Mother
did not call to check on the girls’ welfare, and when the girls tried to call
Mother, she did not answer. The girls were thereafter removed from Mother’s
4
custody;5 New Jersey CPS was concerned because the girls had found a crack
pipe in the home and because of Mother’s mental health situation.
2. Mother’s Side of the Story
Mother recalled that there were “quite a few unfounded allegations” of
physical abuse by Mother toward Beth in 2006 in New Jersey. Mother
described an event when Beth gagged herself at the Atlantic City Shelter;
Mother said that Beth was not trying to kill herself but was merely trying to get
some attention because she was frustrated at the way she was being treated
by the other girls. Mother said that Beth got her attention, but Mother did not
take Beth to the doctor because she was not hurt.
Mother testified that her daughters came into foster care in New Jersey
because “there was some domestic violence and some drug abuse.” Mother
said that her husband, H.G., was the person committing the domestic violence,
that he hit her with his hand, and that she asked him to leave, “but, you know,
just as [with] everything, people change.” 6 Mother testified that “there were
quite a few instances where the police were called” and that she sought a
5
… Prior to November 2006, none of the referrals were substantiated, so
the children were not removed from Mother.
6
… Mother did not recall that at one point in New Jersey, H.G. had
thrown a glass container at her and missed, hitting one of her daughters and
cutting her. Mother also did not recall Becca ever telling her that she was
fearful that H.G. would kill Mother.
5
temporary restraining order against H.G. a couple of times, but she did not
recollect whether she followed through and obtained a permanent restraining
order against him. Mother said that her daughters were scared about the
violence in the home between Mother and H.G. In November 2006, for her
daughters’ safety, Mother placed the girls with a friend until the domestic
violence issue could be resolved.
Mother said that she relapsed on cocaine in 2006, after having been clean
for five years, and that her children were removed as a result of her cocaine
use. Mother blamed her relapse on poor decisions. While her daughters were
in foster care in New Jersey, Mother lived in Philadelphia in a sober house.
Mother’s services in the New Jersey case included attending counseling
and mental health programs, staying clean, and attending required meetings.
During that time, however, Mother was not visiting her children because she
was living in Pennsylvania and the girls were living in New Jersey. Mother
worked her service plan in the New Jersey case, and her daughters were
returned to her.
When the girls were returned to Mother, her understanding was that New
Jersey CPS was supposed to contact Texas CPS and that together, over six
months, the two agencies would work with Mother to help make her transition
smooth. Mother, however, was not contacted by anyone from Texas CPS
6
when she moved here, so she attempted to seek services and assistance on her
own.
C. Referrals in Texas
The first referral came in to Texas CPS regarding the safety and possible
neglect of the girls on November 9, 2007, while the girls were living with
Mother at an apartment complex in Arlington. The girls were found in the
apartment complex at 10:00 p.m., and when law enforcement arrived and
questioned the girls, they said that they lived in the Family Life Shelter in
Arlington, that Mother was no longer there, and that she was not answering her
phone. Hawkins noted the similarity between this referral and the April 2001
referral in New Jersey.
Three days later on November 12, 2007, the shelter requested that
Mother complete a drug test, but she refused. Mother was very upset about
the investigation; she took the girls and left the shelter.
Another referral came in on November 28, 2007, which was very similar
to the November 2006 referral in New Jersey, and which alleged that the girls
were at an apartment complex with one of Mother’s friends who was unable
to care for the girls. Mother had told her friend that she would be gone for a
weekend. Two days after Mother left, she called the girls and said that she
was coming back to get them, but two weeks had elapsed with no sign of her.
7
Beth became sick and was running out of her bipolar medication,7 so the friend
could no longer keep the girls.
Hawkins discovered that Beth had only two or three pills of her bipolar
medication left and that she also had a cough. Hawkins said that because they
could not contact Mother, they did not know how to refill Beth’s medicine,
which had been prescribed by a doctor in New Jersey.8
Hawkins testified that when the referral came in to Texas CPS, the
caseworkers were concerned about the situation that the girls might be in by
living in Mother’s apartment because it did not have adequate furniture and
there was no heat. There were also domestic violence concerns, stemming
from H.G.’s living with Mother.
D. Removal in Texas
1. According to CPS’s Records
The day that Hawkins removed the girls—November 28, 2007—she tried
to locate Mother. The girls told her that Mother “hung out” at a friend’s house.
When CPS went to the house to look for Mother, the occupants said that they
7
… Mother testified that Beth was diagnosed as bipolar when she was
thirteen and that she takes Seroquel.
8
… Hawkins called the phone number on Beth’s bottle of medication, and
the pharmacist provided the phone number for Beth’s doctor. They left a
message for the doctor, but Hawkins does not know what happened after that.
8
had not seen her in a couple of weeks. Hawkins kept trying to call Mother’s
cell phone number, but there was no answer. Hawkins also called the jails and
shelters in Tarrant County but was not successful in locating Mother.
During the car ride to the foster home, Beth kept calling Mother’s phone,
and it kept saying that the voice mail was full. The girls were upset, but Beth
made the comment, “I can’t believe that she did this again.” Hawkins thought
that the girls seemed used to Mother’s behavior.
Hawkins disposed of the case as “Reason To Believe for Neglectful
Supervision.” Hawkins said that CPS was concerned about Beth almost running
out of her medicine but that CPS could not add that to the removal allegations
because at the time, they were not able to talk to Mother to determine whether
this was intentional. Hawkins testified that after hearing Mother’s testimony
at trial, CPS would have substantiated the medical neglect as well because Beth
needed the medicine and did not have it for whatever reason.
2. Mother’s Side of the Story
Mother said that she and the girls moved to Texas to get away from what
was going on in Pennsylvania and New Jersey. When they came to Texas,
Beth had only a week’s worth of medication, but she did not run out of her
medications while she was in Mother’s care.
9
Mother said that she was not in a position to prevent CPS from taking her
daughters into custody when they were removed in late November 2007.
Mother explained that she left her daughters with a neighbor so that they could
attend the same school while Mother “was trying to make some decisions on
what [she] was going to do for their stability.” Mother left her daughters with
her neighbor, even though she did not know the neighbor that well, because her
daughters were friends with the neighbor’s children. Mother gave the neighbor
a cell phone number where she could be reached.
In December, Mother made contact with the neighbor with whom she had
left the girls and learned that the neighbor had called CPS after two weeks of
caring for the girls and that the girls were in CPS care in Tarrant County.
Mother thinks that two months elapsed before she made contact with her
daughters after they were taken into CPS’s custody. Mother said that her cell
phone did not work during the entire time that the girls were taken into CPS’s
care, and there was no alternate number for them to use to contact her.
Mother agreed that by her leaving the girls and not returning, CPS had grounds
to take the girls into custody.
E. Mother’s Service Plan and Compliance Therewith
Katrina White, the ongoing caseworker for Beth and Becca, received the
case in late January 2008 and met with Mother to work out a new service plan
10
because the initial plan was written before CPS knew where Mother was living.9
Mother’s service plan included (1) weekly visitation with her daughters and
required Mother (2) to attend individual counseling and to abide by the
recommendations of the counselors, (3) to complete a psychological evaluation,
(4) to submit to random drug testing, (5) to attend parenting classes, (6) to
provide a safe, stable, and appropriate home, (7) to become gainfully employed,
and (8) to continue with MHMR and to follow its recommendations. White also
told Mother that it would be good for her to attend Narcotics Anonymous (NA)
meetings.
1. Visits
White scheduled visits around when it was convenient for Mother to
attend,10 yet during the nine and a half months that the case was pending,
Mother made only twelve visits. When Mother attended the visits, she almost
always brought lots of clothing for the girls. White did not have any concern
9
… White testified that from the time the girls were removed in late
November 2007 until the time White received the case in late January 2008,
Mother did not communicate with anyone at CPS or with her daughters.
10
… Mother told White that she was working at Motorola early in the
case, and so CPS scheduled visits around Mother’s work schedule. It was a
surprise to White when she heard Mother testify at trial that she had worked
only one day during the case.
11
over the visits on February 14, February 21, March 13, March 18, and March
27.
Mother missed a visit on April 24 and called White on April 30 asking to
reschedule. Mother said that she was no longer living in the apartment but was
living in a women’s shelter after suffering domestic abuse inflicted by H.G.
White rescheduled the visit for May 2, but Mother failed to show up. White did
not hear from Mother after the April 30 call until June 17, and Mother did not
visit from March 28 until June 30. During the time when Mother was in and
out of the picture and then called White, she would say that she did not want
to disappoint the girls, but White did not recall Mother’s asking how the girls
were doing.
White observed the visits because Mother had a problem with the two
case aides and asked that White be the one to supervise the visits after that.
White testified that not all the visits had been happy. There were a couple of
visits when Beth ended up in tears because Mother was not paying attention
to her.
During the visit one week before trial, Mother was very upset and
agitated and confronted White about some things the girls had said. White
testified that the girls had taken something out of context that White had told
them or had misunderstood what White had said and conveyed that to their
12
Mother. White explained to Mother what White had actually said to the girls.
Later, Mother started telling the girls things that White did not feel were
appropriate for the visit, and White asked her not to talk about those things
during the visit. Mother proceeded to argue with White, and White told her to
stop arguing or she would have to end the visit. Mother persisted, and White
ended the visit. During this time, White “was a little concerned” about being
around Mother during her time of heightened emotion.
According to Mother, she visited her daughters every time she could
possibly visit; when she missed a visit, it was because she had moved to a
shelter and did not have transportation. Mother said that her visit the week
before trial went well as between her and the children but that White “didn’t
seem to like that I . . . upset[] my children with some information that was
shared with them, and she wanted to end the visit.” Mother explained that
White was approximately thirty or forty minutes late to the visit and that this
caused tension. Mother said that the girls were upset about a lot of things that
were being said to them during transportation to and from the visits, and they
were visibly upset. So Mother inquired why “certain things were being shared”
with the girls because it was upsetting them. Mother guessed that White did
not feel like Mother should be questioning anything and told Mother that she
13
could stop the visits if Mother wanted to argue. Mother did not feel like she
was arguing but rather making an inquiry.
2. Individual Counseling
Mother attended seven individual counseling sessions at Positive
Influences but stopped going at the end of April because she moved to a
shelter. Mother therefore did not successfully complete the individual
counseling that was required by her service plan. White said that she thinks
Mother still needs counseling.
3. Psychological Evaluation
Mother completed a psychological evaluation with Dr. Mark Matthews but
did not receive a copy of it and was not aware of the recommendations made
in conjunction with the psychological evaluation.11
4. Drug Testing and NA
White testified that she told Mother where to go to take the hair follicle
test, explained that CPS would pay for all the services, and gave her a deadline
for taking the test, but that Mother did not ever submit a hair follicle sample.
11
… Mother recalled sitting in Dr. Matthews’s office, but she did not recall
telling him that she had been hospitalized four or five times for psychiatric
treatment, that she had been hearing and seeing things, that she had been
arrested before, that she believed that there were cameras in her house, or that
she believed that people were following her.
14
White also asked Mother to complete a urinalysis, but she did not. 12 Mother
did, however, supply White with the results of a drug test that she had done
at MHMR in March 2008. Mother went for a drug assessment and did not have
a positive drug test, so she was not admitted into the CATS program. And
although W hite had asked Mother to provide evidence verifying each NA
meeting that she attended with a signature from someone who facilitates the
meeting, Mother offered only a piece of NA stationery.
During Mother’s testimony at trial, she said that she was never asked to
submit a urinalysis and that the hair follicle test was never set up. Mother
admitted that the longest she had gone without using cocaine is five or six
years and that the last time she used cocaine “was earlier this year.” 13
However, Mother stated that she was now drug-free. She had been a member
of NA for ten years, had been through the steps and was back on step one, had
a sponsor, and had attended up to two meetings a day.
5. Parenting Classes
Mother completed parenting classes and anger management classes.
12
… CPS considers test results to be positive if a parent does not take a
requested drug test.
13
… The trial took place on September 9 and 12 and October 2, 2008.
15
6. Safe, Stable, and Appropriate Home
White said that Mother has had periods of stable housing and periods of
unstable housing throughout the case. White said that Mother had lived on
Liberty Street, then in a shelter, and at the time of trial was in a two-bedroom
apartment off Arkansas Lane that she began leasing five weeks before trial.14
White visited Mother’s apartment and noted that it had adequate furnishings
and was clean. White testified, however, that it appeared that Mother was
living with H.G. at some point during this case, which concerned White because
the girls had said that H.G. was the reason that Mother had started doing drugs
again and that he had abused Mother both physically and emotionally.
Mother testified that she lived at four places during the time that CPS had
been involved in this case in Tarrant County: an apartment in Arlington; a
shelter; a residence on Liberty Street; and, at the time of trial, at an apartment
on Arkansas Lane.15 Mother explained her numerous moves by stating that she
moved from the apartments in Arlington because she was trying to do things
on her own for her children but ended up losing her job, time, money, and the
14
… Susan Myrosh, the CASA advocate for the girls, testified that Mother
had lived five places during this case: an Arlington shelter, a Fort Worth
shelter, a house on Liberty Street, an Arlington shelter, and her current address.
15
… Mother testified that H.G. came back and lived with her in an
apartment in Texas in February 2008.
16
apartment. Mother said that she went to a shelter and had to leave because
there was no availability. Mother spent an extended period of time living in the
house on Liberty Street because her church was assisting her until she found
something more permanent.
Mother said that during the time that she did not have stable housing, she
was working on it. Mother thought the focus on the time frames that she took
to get stable should not lead the trial court to conclude that she is “a totally
incapable, unstable mother.”
7. Employment
Mother had never provided her caseworker with a pay stub, proof of
employment, or documentation that she is disabled due to her bipolar disorder.
However, White had spoken with Ms. Disney, who worked in the MHMR
building, and Ms. Disney said that she was taking care of Mother’s SSI and
disability but did not provide White with any physical documentation.
Mother worked at Motorola for one day while the case was pending, but
other than that, she had not worked due to disability. Mother stated that she
was in the process of obtaining Social Security disability income and that Dr.
Patel with MHMR had signed a medical release stating that Mother’s disability
deemed her permanently unable to work, but that she had not heard a final
decision on her ability to receive disability income. Mother said that if the SSDI
17
was not approved, she would “just work [her] way back towards gainful
employment” so that she could provide for herself and her daughters.
With regard to providing financially for the girls’ physical needs, Mother
said that she would be able to provide food because she was receiving food
stamps, that she would be able to provide clothing because there are resources
in the community that provide clothing, and that she had already begun the
process of getting school supplies for her daughters from the Arlington Life
Shelter. When asked whether she had transportation, she said that she did not
personally have transportation but was centrally located and was only ten
minutes from school and the doctors’ offices.
8. MHMR
White said that other than the one time after the continuation hearing,
Mother had always been very pleasant to her, so White had never had a reason
to believe that Mother was not taking her bipolar medications. White, however,
admitted that she did not have any knowledge that Mother was taking her
bipolar medications and expressed concern that Mother was not taking anything
for her paranoid schizophrenia.
Mother admitted that she had been diagnosed with bipolar disorder and
said that she was taking her medications daily. Mother was not aware that she
had been diagnosed as paranoid schizophrenic and said that she was not taking
18
any medication for that diagnosis. Mother said that regardless of the diagnosis
Dr. Patel gave her, she was taking the medications he gave her and would
follow up with MHMR. Mother, however, admitted that she missed four
appointments with Dr. Patel because he was in Fort Worth and that there is no
bus route from Arlington.
9. Overall
White testified that overall, Mother was cooperative and appeared to
want to work her service plan. Every time Mother talked to White, she asked
what she had left to do on her service plan and always gave White some way
to get in touch with her.16 White, however, had numerous concerns.
White said that there was certainly a concern that if Mother got the girls
back, she would return to H.G. in the future and expose the girls to more
domestic violence. White testified that Mother had used cocaine since she
moved to Texas, and the fact that Mother had failed to remain drug-free is a
risk to the girls because Mother’s use of cocaine would impair her supervision
and decision-making abilities. Mother had the whole case to obtain housing but
failed to do so until August 1, approximately five weeks before the termination
trial; White said that this concerned her because it was not enough time to
16
… Despite having contact information, neither White nor Myrosh found
Mother to be very forthcoming with information during the course of the case.
19
show stability. White also had concerns about returning the girls to Mother if
she was not taking medication for a mental illness because the medication
stabilizes the person’s moods and actions, and without stable moods, the
person would not be able to care for her children as effectively.
White admitted that she took it upon herself to transport Mother to the
majority of the visits because White wanted to award Mother all the
opportunities possible to make the visits. White believed that Mother had
ample opportunity to work the service plan but that she had not made any
significant changes in her life to regain custody of her daughters. White said
that even if Mother had finished counseling, she would not have done
everything on her plan, except obtain a job, because W hite did not feel like
Mother had proven that she could be stable. In White’s opinion, Mother had
demonstrated an inability to provide a safe environment for her daughters
throughout the New Jersey case and the Texas case involving CPS. White did
not believe that Mother would provide a safe and secure environment for her
daughters if the court returned them to her, nor did White believe that Mother
would be able to care for, nurture, and guide her daughters if CPS ended its
involvement in their lives. White concluded that during the nine and a half
months that the case had been pending, Mother had not shown that she had
established stable housing, stable employment, or emotional stability.
20
When asked what changes she had made, Mother said that she had
obtained stable housing, was drug-free, attended and diligently worked a
recovery program, was compliant with her doctor appointments and medication,
and was working on obtaining disability pay. Mother said that she stayed in
touch with her caseworker to the best of her ability during the entire case and
that she performed to the best of her ability the services that were asked of
her.
F. The Effects of Mother’s Behavior on the Girls
1. According to the CASA Advocate
Myrosh, the CASA advocate, became involved with the case in February
2008. Myrosh said that both girls are in the same grade and had recently
completed and passed the seventh grade prior to the start of trial. Myrosh
described the girls as confused, hurt, and angry and said that they have a lot
of conflicting emotions.
When Myrosh first met Beth, she was always getting in trouble at school
and being placed on suspension or detention, she was not doing well in her
schoolwork, and she had a bad attitude. Two or three months later when
Myrosh met with Beth’s teachers, they commented that Beth had changed and
was getting along with her peers, making friends, doing her schoolwork, asking
for extra credit to raise her grades, and becoming more involved in what she
21
was supposed to be doing at school.17 The teacher noted that peace had come
to the classroom because Beth was no longer acting as the ringleader and
perpetuating a hostile environment in the classroom.
Becca had also been in detention and had been suspended at times but
had improved. She had raised her grades and was treating her sister and other
students in the classroom better.
Myrosh observed four visits between Mother and her daughters. On one
visit, Myrosh observed Beth crying because Becca was picking on her, and
Mother encouraged Beth to toughen up.
During another visit that Myrosh observed, Mother felt that there were
some racial issues with the case aide and requested that a new case aide be
assigned. Myrosh had observed the case aide in the visits and found her to be
a very strict rule-enforcer, which Myrosh thought was appropriate for the visits.
Myrosh, however, thought it was inappropriate for Mother to be talking about
this issue in front of her daughters and asked if it could be discussed privately,
but Mother said that they share everything and that it was okay for the girls to
be there.
17
… During this time, visits were not taking place.
22
When asked whether there were any other times that she observed
Mother talking to the girls about something that she thought was inappropriate
to talk about in front of them, Myrosh said that Mother discussed this case with
her daughters and with the caseworker (while her daughters were present) and
that there was
this air of keeping secrets with the girls, talking with or just making
like snide remarks or rolling the eyes if a case aide or the
caseworker said something, or just basically not making the
environment to be a -- to be one that is showing total support of
trying to work on the goals. Not necessarily work on the goals, but
work on keeping peace and just having things run smooth during
the visit.
Myrosh said that there had been a couple of times when the girls went
for a visit and their mother did not show up, as well as times when the
caseworker did not come to the school to pick up the girls because she knew
Mother had not shown up. The longest period of time that Mother went
without visiting was six weeks. Myrosh said that this occurred during the last
couple of months before trial and that Mother had just returned to visiting
during the weeks preceding trial.
During those times when visits were not taking place, Beth would call
Myrosh and want to know where her mother was because she had been
counting on a visit that day. The girls also disclosed to Myrosh their frustration
about their mother not showing up at visits. Myrosh said that Beth had told
23
her, “I guess she [Mother] really doesn’t want us,” and Becca had asked, “If
Mom comes around again, what state are we going to live in this time?”
Myrosh said that at that point, the girls were no longer frustrated but were
resigned to the fact that “this is how it is” so “[l]et’s move on.” 18
Myrosh noted that when Mother came to the visits, the girls would be
excited but would come back angry. When Mother took breaks from visiting,
the girls started acting up more at school and were angry with everyone that
came into their path. For the first couple of weeks when Mother stopped
visiting, the girls voiced their hurt, but then after they got used to it, they made
a complete turnaround and were open, compliant, and obedient. When Mother
reappeared, the cycle started over again.
Myrosh believed the girls had come to the realization that Mother is never
going to be stable. The girls wanted things to go well for their mother, but the
girls were scared. Specifically, Beth was fearful of the abuse that she received
from Mother and stepfather, which involved holding her down and hitting her,
and both girls were afraid of the “going in and out constantly.”
18
… When the girls were in foster care in New Jersey, Mother was gone
for the whole summer. The girls said that this is the way it had always been;
once their mother got “a guy in her life,” then she was out of the picture for a
couple of months.
24
Myrosh also visited the girls’ foster home between four and seven times
during the case. In the beginning, Beth ate food out of the trash because she
had no manners, talked rudely about people, and failed to show respect for
other individuals. Myrosh said that Beth’s disrespect was not as strong as it
was in the beginning and that her foster dad had worked with her on her
manners. Myrosh testified that the foster family had worked with the girls on
their behavior; had provided the girls with boundaries and stability, sufficient
food, and proper clothing; and had taken the girls to counseling during the time
that they had housed them.
2. According to the Caseworker
White testified that Becca never seemed to want to talk about the
removal in New Jersey and that Beth would “get very convoluted” when she
talked about it, so White never obtained a good explanation for what happened.
Becca told White that H.G. was the reason Mother started doing drugs again
and that he was the reason the girls would leave the home because he engaged
in domestic violence.
White testified that both girls were better off psychologically and
emotionally than they were in the beginning. Their hygiene was much better,
they were no longer eating from the trash, they got along much better with
everybody, and Becca had calmed down and was not lashing out at everybody.
25
White said that although the girls seemed more relaxed and a lot happier
when Mother was not visiting, the girls loved their Mother a lot and had tried
to protect her throughout this case. W hite did not think that the girls would
ever lose hope that Mother would turn her life around but testified that a
continued hope of Mother being in the picture could adversely affect Beth and
Becca.
White testified that she had been to the foster parents’ home ten times
and felt that the foster parents had adequately provided for Beth’s medical care
in terms of her bipolar disorder. White said that the girls called their foster
home their “home,” that they got along well with the foster family, and that
they really liked being in the foster home, but the girls had a hard time trusting
people and were scared to make another parental bond with someone else.
3. According to the Girls’ Counselor
Lazane Walls testified that she had been counseling the girls every other
week since February 2007 and was still counseling them at the time of trial.
When Walls first started counseling the girls, they said that they had moved to
Texas from New Jersey and that they had lived with relatives (without Mother)
in North or South Carolina before that. The girls shut down emotionally when
Walls asked them how they ended up in foster care and would only say that
they were left with a friend of Mother’s.
26
Walls knew that Mother was lying when she said that she had visited her
girls every week that they had been in CPS custody because there were two or
three times when the girls were really depressed because Mother did not come
for the visit or call to cancel. Beth was devastated when Mother did not appear
for visits. And Becca said that she considered Mother dead because she had
not been there for her.19 The girls loved Mother and cared deeply about her but
knew that she did not have the capability—due to her mental health issues and
past drug abuse—to be a responsible parent for them. As of the time of trial,
Walls testified that the girls were exhausted with inconsistency: no-shows for
the visits and no calls.
Wall believed that the girls had trust issues and said that children need
stability because they need to know how to trust. In this case, Beth was
frustrated with Mother’s behavior and wanted to give her another chance. Beth
had difficulty accepting that Mother is incapable of taking care of them. Becca
did not want to be abandoned anymore and did not want to go back to Mother.
The girls said that they were tired of moving around and that they wanted to
be in a stable environment.
19
… The girls said that Mother had a boyfriend and that whenever she
dated, they “became somewhat abandoned.”
27
Walls testified that the girls had realized that they were not going home.
They had accepted that they were okay in the current foster placement and had
expressed that they really felt good about their foster home because someone
was always there when they needed something. Wall said that the foster home
provided appropriate boundaries and stability for the girls and had a point
system for doing tasks.
G. Plans for the Future
1. Mother
Mother’s plan was to continue working on her sobriety by attending NA
meetings and working with her sponsor. Mother also said that she had a plan
in place to stay away from family violence, but she did not elaborate on what
the plan was.
Mother said that the girls would turn eighteen in only a few years and
that it would not be in their best interest to tear them away from her because
Mother was close to her daughters and had a good relationship with them
despite all the things that they had been through. Mother felt “like the kids
[had] been under a lot of stress, and, you know, told a lot of things and so forth
of their desires, and what they share[d] with [her] versus, you know, what
other people, you know, portray[ed] how they feel [are] two different things.”
Mother testified that the girls wanted to visit with her and that they wanted to
28
come home with her. Thus, Mother testified that she was in a position to care
for the girls,20 that she did not want her parental rights terminated, and that it
was not in the girls’ best interest to terminate her parental rights.
2. The Girls
Myrosh and White testified that the girls initially wanted to go back to
their foster home in New Jersey, but now that they had built relationships and
friendships in Texas, they wanted to stay with their current foster family.
Myrosh testified that the girls had voiced that they wanted to move forward,
so their plan was to stay in foster care, go through the PAL Program, and go
to college. The girls, however, had always told Mother that they wanted to
come home and were excited about coming home. Myrosh also said that Beth
did not want to hurt Mother’s feelings because Beth cared for her but that Beth
did not want to live with Mother. Myrosh believed that the girls were
reluctantly agreeing to stay in foster care because that was what they believed
that others wanted them to say.
The girls told Walls and White that they wanted stability but that they did
not want to be adopted. The girls told White that they wanted to have some
20
… Beth told White that Becca had told her that Mother wanted Becca
to “be okay” with H.G. living in the home so that the girls could come home to
her and H.G.
29
contact with Mother, and Beth told Walls that when she turns eighteen, she
wants to help Mother.
3. CASA
Myrosh did not believe that Mother had accepted appropriate
responsibility for the situation her girls were in, nor did she think that if the girls
were placed back with Mother that they would have a safe and secure
environment that would appropriately enhance their physical and emotional
needs. Instead, Myrosh was concerned for the girls’ safety due to Mother’s
pattern of coming in and out of their lives and believed that continued contact
with Mother would put the girls in an emotional upheaval. Myrosh therefore
believed that Mother’s parental rights should be terminated because when
Mother is in the picture, the girls are angry, and when she is not, they relax and
start looking toward the future.
4. Counselor
Walls believed that the girls should stay at their current foster home
because the home had been stable for them. They loved their school, their
foster parents, and the environment. They realized that they would go to
school, come home, and still be living in the same place the next day, which is
stability that they had not previously enjoyed. But because Beth told Walls that
she would be devastated if she could not have visits with Mother, Walls
30
suggested that the trial court allow Mother monthly visits if she could commit
to keeping them but noted that sporadic visits would be devastating to the girls.
Walls said that so long as Mother (1) demonstrated that she was able to visit
with her daughters on a continual basis or to call when she could not be there,
(2) stayed drug-free, and (3) followed her doctor’s recommendations for taking
her medications, Walls believed that Mother’s parental rights should not be
terminated. However, Walls testified that the girls needed closure and that
termination of Mother’s rights would be best if she could not demonstrate
consistency.
5. CPS
White believed that Beth and Becca needed closure. White did not have
any concerns about the foster home and believed that the foster parents loved
the girls and were willing to take care of their physical, emotional, mental, and
spiritual needs now and through adulthood. White therefore believed it would
be in the girls’ best interest to keep them with their foster parents and to
terminate the parental rights of Mother.
H. Trial Court’s Disposition
After hearing the above evidence and reviewing Mother’s MHMR records
that were admitted into evidence, the trial court found that it was in the best
interest to terminate Mother’s parental rights to her daughters. The trial court
31
thereafter signed a judgment terminating Mother’s parental rights after finding
by clear and convincing evidence that Mother had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children and engaged in
conduct or knowingly placed the children with persons who engaged in conduct
which endangered the physical or emotional well-being of the children; that
Mother has a mental or emotional illness or a mental deficiency that renders her
unable to provide for the physical, emotional, and mental needs of the children
and that the illness, in all reasonable probability, would continue to render
Mother unable to provide for the children’s needs until their eighteenth
birthdays; and that termination of the parent-child relationship with Mother was
in the children’s best interest. This appeal followed.
III. Burden of Proof and Standards of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute, and just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also essential
32
that emotional and physical interests of the child not be sacrificed merely to
preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a
termination case, TDFPS seeks not just to limit parental rights but to erase them
permanently—to divest the parent and child of all legal rights, privileges, duties,
and powers normally existing between them, except for the child’s right to
inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings
and strictly construe involuntary termination statutes in favor of the parent.
Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.
App.—Fort Worth 2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon
2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear
33
and convincing if it “will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Id. §
101.007 (Vernon 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the factfinder resolved any disputed
facts in favor of its finding if a reasonable factfinder could have done so. Id.
We must also disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable factfinder could, and disregard contrary evidence
unless a reasonable factfinder could not. Id.
34
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573–74. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated section 161.001(1)(D) or (E) and
that the termination of the parent-child relationship would be in the best interest
of the child. C.H., 89 S.W.3d at 28. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction in the truth of its finding, then the evidence
is factually insufficient. H.R.M., 209 S.W.3d at 108.
IV. C ONDUCT AND E NVIRONMENTAL E NDANGERMENT
In her first issue, Mother argues that the evidence is legally and factually
insufficient to establish the endangerment termination grounds. Specifically,
35
Mother argues that TDFPS failed to prove that Mother engaged in an
endangering course of conduct or that Mother allowed the children to live in an
endangering environment.
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
To prove endangerment under subsection (D), TDFPS had to prove that Mother
(1) knowingly (2) placed or allowed her children to remain (3) in conditions or
surroundings that endangered their physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(1)(D). Under section 161.001(1)(E), the relevant
inquiry is whether evidence exists that the endangerment of the children’s
physical well-being was the direct result of Mother’s conduct, including acts,
omissions, or failures to act. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code
Ann. § 161.001(1)(E). Additionally, termination under section 161.001(1)(E)
must be based on more than a single act or omission; a voluntary, deliberate,
and conscious course of conduct by the parent is required. J.T.G., 121 S.W.3d
at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). However, it is not
necessary that the parent’s conduct be directed at the children or that the
children actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d
at 125. The specific danger to the children’s well-being may be inferred from
36
parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To
determine whether termination is necessary, courts may look to parental
conduct occurring both before and after the children’s birth. In re D.M., 58
S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.
denied). A factfinder may infer from past conduct endangering the well-being
of the children that similar conduct will recur if the children are returned to the
parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet.
denied), disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H.,
89 S.W.3d at 17. Drug use and its effect on a parent’s life and her ability to
parent may establish an endangering course of conduct. Dupree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas
1995, no writ).
The record contains substantial evidence of subsection (D) environmental
endangerment and subsection (E) course of conduct endangerment to the
physical or emotional well-being of the children. Because the evidence
concerning these two statutory grounds for termination is interrelated, we
consolidate our examination of it. See J.T.G., 121 S.W.3d at 126.
37
The record demonstrates that Mother had a long history of illegal drug
use, dating back to when she was sixteen years old and was offered cocaine.
Mother also had a history of disappearing 21 and of relying on others to parent
her daughters while she was away. Because of Mother’s disappearances, the
girls did not experience stability in their home environment; the record revealed
that the girls’ foster placement might be the longest that they had ever lived in
one place. The record also revealed that there were domestic violence issues
between Mother and H.G., which the girls witnessed, and that Beth was fearful
of the abuse that she had received from Mother and her stepfather, which
involved holding her down and hitting her.
We have carefully reviewed the entire record. Giving due deference to
the trial court’s findings, we hold that a reasonable trier of fact could have
formed a firm belief or conviction that Mother knowingly placed Beth and Becca
in conditions and engaged in conduct that endangered their physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); J.F.C.,
96 S.W.3d at 265–66; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124.
21
… In addition to the evidence set forth above, the trial court took judicial
notice that a status review was held on February 6, 2008, and that a
permanency review was held on June 25, 2008, and that Mother had been
gone two months prior to those two hearings.
38
Although Mother loved the children and had made some effort to comply with
her service plan, the record reflects her ability to refrain from drugs was short-
term and that when she was abusing drugs, dating, or both, she could not
provide a safe and stable environment for the children. See In re J.C.J., No.
05-05-01555-CV, 2006 WL 2348987, at *7 (Tex. App.—Dallas Aug. 15,
2006, no pet.) (mem. op.) (holding that evidence was legally and factually
sufficient to show that father engaged in conduct that endangered his children’s
well-being by not staying off drugs, by not staying on his medications, and by
not providing a safe and stable environment for the children); see also In re
M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (holding
that record contained legally and factually sufficient evidence of both
endangerment grounds when, among other things, it showed that mother
exposed children to domestic violence and refused to participate in her CPS
service plan). Accordingly, we hold that the evidence is legally and factually
sufficient to support the trial court’s findings on environmental endangerment
and course of conduct endangerment. We overrule Mother’s first issue.22
22
… Texas law provides that parental rights may properly be terminated
when a trial court has made a finding under either section 161.001(1) or
section 161.003, plus a best interest finding under section 161.001(2). See
In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—Fort W orth 2003, no pet.).
Because we have held that termination was proper under section 161.001(1)(D)
and (E), we need not address Mother’s second and third issues in which she
39
V. T ERMINATION OF M OTHER’S P ARENTAL R IGHTS W AS
IN T HE C HILDREN’S B EST INTEREST
In her fourth issue, Mother challenges the legal and factual sufficiency of
the evidence to support the finding that the termination of her parental rights
to Beth and Becca was in their best interest.
A. Standard of Review for Best Interest
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the child in a safe environment is also presumed
to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon
2008). The following factors should be considered in evaluating the parent’s
willingness and ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm
to the child;
(4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department or
other agency;
challenges the trial court’s termination of her parental rights based on grounds
listed under section 161.003. See Tex. R. App. P. 47.1.
40
(5) whether the child is fearful of living in or returning to the
child’s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family
members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to
the child’s home;
(8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is
identified;
(10) the willingness and ability of the child’s family to seek
out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency’s close
supervision;
(11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a
reasonable period of time;
(12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other
children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline
consistent with the child’s physical and psychological
development;
(C) guidance and supervision consistent with the
child’s safety;
41
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child;
and
(F) an understanding of the child’s needs and
capabilities; and
(13) whether an adequate social support system consisting
of an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case
may use in determining the best interest of the child include (1) the desires of
the child, (2) the emotional and physical needs of the child now and in the
future, (3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody, (5) the programs
available to assist these individuals to promote the best interest of the child, (6)
the plans for the child by these individuals or by the agency seeking custody,
(7) the stability of the home or proposed placement, (8) the acts or omissions
of the parent which may indicate that the existing parent-child relationship is
not a proper one, and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
42
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Best Interest Analysis
Because Mother claims that no legally and factually sufficient evidence
exists to establish that termination of her parental rights is in the children’s best
interest, we begin our analysis with the factors listed in family code section
263.307(b).
With regard to the first statutory factor, the children involved were
thirteen and fourteen at the time of trial. Beth had been diagnosed with bipolar
disorder, and Becca had been diagnosed with ADHD and required medication
to stabilize her mood.23
Under the second factor, the record revealed that CPS was able to place
Beth and Becca in the same foster home; the girls were never moved to another
foster home or returned to Mother after they were removed from her in Texas.
The record contains evidence that the girls had previously lived in a foster home
23
… Becca was diagnosed with ADHD while in CPS care.
43
in New Jersey but were returned to Mother after she completed her New Jersey
service plan.
With regard to the third, fourth, and ninth factors, the girls were exposed
to domestic violence incidents involving Mother and the girls’ stepfather, H.G.
The girls were also harmed by Mother’s numerous disappearances, both before
and after the removal. The record also revealed that the girls had been exposed
to Mother’s drug paraphernalia.
With regard to the fifth factor, the record revealed that Beth was fearful
of the abuse that she had received from Mother and H.G., which involved
holding her down and hitting her, and that both girls were afraid of Mother’s
“going in and out [of their lives] constantly.”
With regard to the sixth factor, the record did not include psychiatric,
psychological, or developmental evaluations of the children; however as
mentioned above, several people testified that Beth was on medication for
bipolar disorder and that Becca was on medication for ADHD and mood
stabilization. The record also demonstrated that Mother had been diagnosed
with bipolar disorder and that she had a history of “paranoid ideation.”
The record was replete with evidence of the seventh and eighth factors.
As set forth above, domestic violence was present when H.G. was in the home.
Additionally, the record revealed that Mother had used cocaine, alcohol, and
44
marijuana and that her most recent cocaine use was during the same year as
the trial.
With regard to the tenth and eleventh factors, Mother did not successfully
complete the individual counseling that was required by her service plan. White
believed that Mother had ample opportunity to work the service plan but that
Mother had not made any significant changes in her life to regain custody of her
daughters.
The twelfth factor—whether the child’s family demonstrates adequate
parenting skills—is hard to quantify because Mother appeared to relegate the
parenting of her daughters to neighbors so that she could disappear. Moreover,
when Hawkins called the girls’ father, he stated that he could not believe that
New Jersey CPS “would give a crackhead back her kids” and that Mother “is
going to get them kids killed.” 24 Additionally, with regard to Mother’s ability to
provide the girls with a safe home environment, Mother had filed for divorce
from H.G. However, Mother’s housing situation had been in flux throughout
the case, and she admitted that it would be affected again if her disability
income was not approved. And though Mother said that one thing she learned
24
… The girls’ father said that there had been a drive-by shooting at one
of the homes that Mother had lived in and that the girls had been there at the
time of the shooting.
45
from her parenting class is how to address her teenage daughters and respond
to them as they go through adolescence, the record revealed that Mother had
what CPS deemed to be inappropriate discussions with her daughters regarding
the case.
Mother testified regarding the final statutory factor that she did not have
family members available to take her daughters. White testified that Mother did
not have an adequate social support system to help her with her daughters, and
Mother’s MHMR records revealed that her support system included “few
friends.”
Regarding the first Holley factor, the girls did not testify at trial, but they
had expressed their desires to several people who testified at trial. The record
revealed that the girls did not want to disappoint Mother and told her that they
wanted to live with her, but the girls told others that they wanted to stay with
their current foster family in order to have stability.
Regarding the second factor—the children’s present and future physical
and emotional needs—Beth needed to continue taking medication for bipolar
disorder, and Becca needed to continue taking medication for ADHD and mood
stabilization. Additionally, both girls spoke of wanting stability, and the record
reflected that the girls had not lived in a stable home other than their foster
home. The record also demonstrated the girls’ need for consistency as
46
Mother’s inconsistent visiting pattern sent the girls on an emotional roller
coaster, affecting all areas of their lives.
The third and eighth factors—the emotional and physical danger to the
children now and in the future and the acts or omissions of the parent which
may indicate that the existing parent-child relationship is not a proper
one—were at the heart of this case. Myrosh testified that continued contact
with Mother would put the girls in an emotional upheaval and that she (Myrosh)
was concerned for the girls’ safety due to Mother’s pattern of coming in and
out of their lives. Beth told Myrosh that she would rather not go back to
Mother because she is fearful of the abuse she experienced from Mother and
H.G. and is fearful of being left again.
Regarding the fourth factor—the parental abilities of the individuals
seeking custody—Myrosh testified that the current foster placement provides
the girls with a safe and secure environment that appropriately enhances their
physical and emotional needs. The record revealed that the foster parents have
worked with the girls on their behavior; have provided the girls with appropriate
boundaries and stability, sufficient food, and proper clothing; and have taken
the girls to counseling during the time that they have housed them.
Concerning the fifth factor, Mother attempted to better herself by
attending parenting classes, anger management classes, and NA and by
47
completing her psychological evaluation and drug assessment. However, she
failed to consistently visit with the children; to complete her individual
counseling sessions; to submit a hair follicle for drug testing; and to establish
stable housing, stable employment, and emotional stability.
Regarding the parties’ plans for the children—the sixth factor—Mother
testified that she was in a position to care for the girls and that it was not in
their best interest to tear them away from her. Myrosh believed that Mother’s
parental rights should be terminated so that the girls could relax and start
looking toward the future, and White agreed, stating that it is in the girls’ best
interest to keep them with their foster parents.
Regarding the stability of the proposed placement—the seventh
factor—the evidence demonstrated that terminating Mother’s parental rights
would allow the girls to remain in their current foster placement—the place
where they have lived the longest—which would allow them to have the
stability that was lacking when they lived with Mother.
Finally, concerning the ninth factor—any excuse for the parents’ acts or
omissions—Mother said that she was accountable for the poor decisions that
she had made in her life and for how her decisions had affected her children.
Although Mother said that she did not appear for any visits during all of May
and most of June because she was in a shelter and did not have the resources
48
to travel to the visits, she agreed that it is neglectful for a parent to disappear
for a few months and not let the child know where he or she is. Mother
admitted that her daughters witnessed domestic violence when they lived with
her and that she did not believe it was appropriate for them to witness that.
Mother also admitted that Beth and Becca witnessed Mother’s drug use and
found a crack pipe in the house in New Jersey. Mother said that she had been
diagnosed with bipolar disorder and that for the majority of her life, she had
depended on the government for assistance. Mother agreed that she had not
shown a lot of stability throughout the case but said that was due to her lack
of income; however, Mother would not agree that she had a history of
abandoning her daughters.
In sum, the record demonstrates that CPS agencies from two
states—New Jersey and Texas—had extensive involvement with Mother.
Mother’s history of drug use and disappearances, difficulty maintaining stable
housing, and inappropriate choice for a spouse, which put her children in danger
by exposing them to domestic violence, all demonstrate that it was in the
children’s best interest that Mother’s parental rights be terminated. See Tex.
Fam. Code Ann. § 161.001(2).
Giving due consideration to evidence that the factfinder could have
reasonably found to be clear and convincing, and based on our review of the
49
entire record, we hold that a reasonable trier of fact could have formed a firm
belief or conviction that the termination of Mother’s parental rights would be
in the children’s best interest. See In re K.A.S., 131 S.W.3d 215, 226–30
(Tex. App.—Fort Worth 2004, pet. denied) (holding that evidence was legally
and factually sufficient to support best-interest finding because there was
domestic violence in home, child had attempted suicide, mother had lengthy
history of noncompliance in taking medications for her bipolar disorder and had
rages and struck children when noncompliant, oldest child’s bipolar disorder and
post-traumatic stress disorder would contribute to problems in home, and
children were secure in their temporary placements in foster care); In re M.B.,
No. 02-07-00280-CV, 2008 WL 2930530, at *14 (Tex. App.—Fort Worth July
31, 2008, no pet.) (mem. op.) (holding that evidence was factually sufficient
to support jury’s finding that termination of appellant’s parental rights was in
children’s best interest because TDFPS had received eight to ten referrals about
appellant, appellant had difficulty maintaining safe and stable housing, appellant
had an inconsistent employment history with no guaranteed income, and
appellant made inappropriate choices by living with a sex offender and engaging
in domestic violence). Accordingly, we hold that the evidence is legally and
factually sufficient to support the trial court’s best-interest finding. We overrule
Mother’s fourth issue.
50
VI. C ONCLUSION
Having overruled Mother’s dispositive first and fourth issues, we affirm
the trial court’s judgment terminating her parental rights to Beth and Becca.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: May 7, 2009
51